Citation Nr: 1429281
Decision Date: 06/27/14 Archive Date: 07/03/14
DOCKET NO. 07-05 883 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky
THE ISSUE
Entitlement to service connection for neuropathy of the feet.
REPRESENTATION
Appellant represented by: Maxwell D. Kinman, Attorney at Law
WITNESSES AT HEARINGS ON APPEAL
The Veteran and his wife
ATTORNEY FOR THE BOARD
R.N. Poulson, Counsel
REMAND
The Veteran served on active duty from February 1973 to June 1976, and from February 1977 to August 1979.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA).
In April 2010 and November 2011, the Board remanded this case to the agency of original jurisdiction (AOJ) for additional development. Thereafter, in October 2012, the Board denied service connection for neuropathy of the feet. The appellant filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In a November 2013 Memorandum Decision, the Court vacated the October 2012 Board decision and remanded for readjudication of the issue.
The Board finds further development is necessary in order to determine the etiology of the Veteran's peripheral neuropathy of the feet, to include whether such is related to his claimed in-service exposure to chemicals, including any Agent Orange exposure while stationed at McChord Air Force Base in Washington.
The Veteran attributes his diagnosed neuropathy of the lower extremities to exposure to hazardous levels of pesticides and Agent Orange during his period of active service. Specifically, he has pointed to findings of "elevated cholinesterase" levels during service, which resulted in his restriction from pesticide duty in May 1979, as evidence that he was exposed to harmful levels of pesticides. He has submitted several articles and medical treatises concerning a link between exposure to pesticides and/or Agent Orange and the development of neuropathy. He has also testified that he has had an intermittent skin rash on his lower extremities since his active service, which, in his view, is indicative of the early onset of neuropathy.
The DD Form 214 from the Veteran's first period of active service shows that his military occupational specialty (MOS) was a carpenter. There is no DD Form 214 with respect to his second period of active service. The Veteran has testified that his duties during this time period included spraying various pesticides. Personnel records for the Veteran's second period of active service have not been obtained by the RO. However, copies of personnel records submitted by the Veteran reflect that his MOS during this time period was "entomology specialist." The RO should attempt to obtain these records on remand.
VA must follow the evidentiary procedures located in the VA Adjudication Procedure Manual (Manual or M21-1MR) that are applicable to the Veteran's claim. See Campbell v. Gover, 14 Vet. App. 142, 144 (2000) (holding that VA was obligated to comply with pertinent Manual provisions and remanding for such compliance); Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to satisfy its duty to assist when it failed to remand for compliance with the evidentiary development called for in M21-1MR).
The procedures in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10.n apply when the Veteran alleges exposure to herbicides in a location other than Vietnam, Thailand, or the demilitarized zone in Korea. The agency of original jurisdiction (AOJ) first is directed to ask the Veteran for the approximate dates, location, and nature of his alleged exposure. If the Veteran timely responds within 30 days, then the AOJ is instructed to email the Veteran's description of his alleged exposure to the Compensation and Pension (C&P) Service and request a review of the Department of Defense inventory of herbicide operations to determine whether herbicides were used as alleged. If the C&P Service does not confirm that herbicides were used as alleged, or if the Veteran did not provide timely information regarding his exposure, the AOJ shall refer the case to the Joint Services Records Research Center. M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10.n.
No indication exists in the claims file that the AOJ attempted to comply with any of the prescribed procedures. The Veteran's claim therefore must be remanded to the AOJ so that this required evidentiary development may be performed.
Accordingly, the case is REMANDED for the following action:
1. Contact the service department, or any other official source as necessary, and obtain all outstanding personnel records for the Veteran's second period of active service (February 1977 to August 1979). All efforts to obtain this evidence must be documented in the claims folder. If records are unavailable from any source, inform the Veteran and afford him an opportunity to submit any copies.
2. Comply with the evidentiary development procedures in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10.n as cited in the narrative section of this remand regarding the Veteran's claim of Agent Orange exposure during his second period of active service (February 1977 to August 1979) while stationed at McChord Air Force Base near Tacoma, Washington.
3. Thereafter, readjudicate the claim on appeal in light of all information or evidence received. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his attorney the requisite period of time to respond. The case should thereafter be returned to the Board for further appellate review, if otherwise in order.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).